Duty to “Cooperate Fully”

Many regulators require practitioners to participate in professional development and quality improvement activities. This requirement often comes with a duty to cooperate with the program. In Mirolo v. College of Physicians and Surgeons of Newfoundland and Labrador, 2021 NLSC 12 (CanLII), https://canlii.ca/t/jcwck the practitioner was disciplined for failing to “cooperate fully” with the regulator’s peer assessment program. The regulator attempted to set up two meetings with a panel of peers. In the first instance, the practitioner raised a number of objections to the proposed meeting including assertions that the panel did not constitute true peers. As a result the regulator, realizing the objections could not be addressed in time, cancelled the meeting rather than inconvenience the panel of peers. For the second meeting the practitioner objected to its timing given his schedule included a planned meeting with a client. After the practitioner refused certain accommodations, that meeting was also cancelled.

The Court upheld the finding of professional misconduct for failing to cooperate fully. The practitioner threw up barriers to the meeting rather than make good faith efforts to cooperate with the peer panel. The regulator’s cancellation of the meetings in the face of the practitioner’s response in order to spare the peer panel from wasted time did not justify the practitioner’s non-cooperation.

However, the Court returned the case to the tribunal to reconsider the sanction. The absence of reasons to explain why a fine and costs order ought to be made and their amounts ($5,000 and 10,000 respectively) prevented the Court from assessing their appropriateness.

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